Lord Williamson of Horton: My Lords, on the behalf of the Cross Bench Peers, I should like to join in the tributes to the late Lord Belstead. The Cross Bench Peers have always appreciated the role of the Leader of the House, which transcends a political role and represents also a voice for the House as a whole. Lord Belstead fulfilled this role with distinction, both as Deputy Leader for four years and as Leader of the House and Lord Privy Seal for a further period between 1987 and 1990.
	I was a senior official in the Cabinet Office for part of this time and I know the esteem with which Lord Belstead was regarded by his political colleagues and, if it is a compliment, by senior officials. In addition to his role in the House of Lords which we remember today, I pay tribute to him for his capacity, during a long political career in high office, to master difficult issues and briefs at the Department of Education and Science, the Northern Ireland Office, the Home Office, the Foreign and Commonwealth Office, the Department of the Environment and the Ministry of Agriculture, Fisheries and Food. That pretty well covers the whole of public life and he covered all those issues with distinction.
	The Ministry of Agriculture, Fisheries and Food may be a somewhat unloved department, although not by me because I am an old boy of that ministry. I worked there when I was young and I stress how difficult some of the problems were. I remember personally and salute Lord Belstead's work there. But, first and foremost in the House today, I pay tribute from all the Cross-Benchers to a former Leader of the House who will be greatly missed.

The Lord Bishop of Chelmsford: My Lords, I am very happy on behalf of these Benches to be associated with the remarks already made about the late Lord Belstead. His quiet and courteous character clearly won him respect across the political divides and throughout this House. Indeed, our political life and the practice of government have been enriched by his quiet and self-effacing service. I hope that the House will forgive someone from Essex saying on behalf of the wider community of the east of England how much his leadership and service to the people of Suffolk, both in the farming community and as its Lord-Lieutenant, have been appreciated. He will be missed by many in that county, in this House and in the wider community. We send our sympathy to his sister and friends. May he rest in peace.

Lord Brooke of Sutton Mandeville: My Lords, it may be apposite to follow my noble friend Lord Waddington. As a result of the disability which eventually took John Belstead to his death, I scarcely saw him during my four years or so in this House, but the reminiscences concerning my late noble kinsman and my late noble relative were so affectionate and vivid that I vicariously felt that I was, in fact, more often in the House with him.
	However, I wish to make a brief reference to the one occasion when he and I overlapped in a government department. When my noble friend Lord Waddington became Leader of your Lordships' House, John Belstead came to Northern Ireland, where he took over the vacancy left by my noble friend Lord Cope, who was removed in what I still call a shuffle, rather than a reshuffle. Lord Belstead became my understudy in the place of my noble friend Lord Cope. I do not think that he had ever been a soldier, but the office of being the understudy in Northern Ireland means that you become the security Minister in the Province, and I pay the loudest possible tribute to the fortitude and integrity with which he discharged that role without having had a military background. I also pay tribute to the manner in which he ran the Province during the general election in 1992, when, by definition, the other Ministers were fighting the election.
	I close on another personal note. He was a member of "Nobody's Friends"—a body which dines in Lambeth Palace, half of whom are lay people and half of whom are ecclesiastical. I will not explain why what I am about to say happens, but the group is called "Nobody's Friends" because people who are elected to it have to make a seven minute speech to explain why they are nobody's friend. It will not surprise your Lordships' House that John Belstead did that particularly well.

Lord Triesman: My Lords, as far as I am aware, the specific issue of relations with the Dalai Lama did not come up during the discussions, but we regularly encourage meetings between representatives of the Dalai Lama and the Chinese Government, and I understand that talks in Berne earlier this year have been the most substantial to date. It is not yet possible to say that significant differences have been overcome, but there seem to have been some discussions.
	I do not think that the jamming of the BBC World Service was discussed specifically during the course of the meeting, but I, as the Minister responsible for the BBC World Service, had those discussions with the Chinese. I cannot say that that led to the unblocking of the service, although it was not blocked for about one month directly following the talks. I regret to say that it is blocked again.

Lord Triesman: My Lords, the noble Lord rightly introduces a list of countries in which the Chinese could make a much more positive contribution in a modern international setting. It is not possible during a visit of this kind to raise every one of those countries, just because of the length of the list, but a range of issues was raised in the general areas of human rights and political reform. Elsewhere in government—it has fallen to me on occasions to do this—we have discussed the more positive action that could be taken. I have had a recent discussion with the Chinese ambassador on the question of Sudan. I am hopeful that we may make some progress because China plainly has a considerable influence right across Africa and, indeed, elsewhere.

Baroness Farrington of Ribbleton: My Lords, there is also a very small niche market in composting bracken, to make compost.

Baroness Byford: Follow that, my Lords. Bracken spread is actually a very serious problem and my noble friend rightly pointed out that it is rapidly getting worse. What assurance can the Minister give the House that those who advise the land managers will give the right advice, because in the past they have said there has been overgrazing and now we face the risk of undergrazing? If there is any more undergrazing we shall just get a more severe spread of bracken.

Lord Hamilton of Epsom: My Lords, I am grateful to the Minister for that Answer. Does she agree that it is wrong for the Chief of the General Staff to appear on television defending the ministerial decision to re-organise regiments in the British Army and that it is equally wrong for chief constables to lobby Members of Parliament in another place on periods of detention for terrorist subjects? Does that not indicate that the Government feel that public servants in uniform have credibility when their own Ministers have none?

Lord Goodhart: My name is attached to the amendments just spoken to by the noble Lord, Lord Kingsland. There is a great deal too much looseness in the drafting of the Bill and that this point, which would make it clear that it must be an objective test—one that members of the public would understand—is the correct approach. We are therefore happy to support the proposal.

Lord Judd: I should put on record at this stage—because do doubt it will come up repeatedly during our deliberations—that I am a member of the Joint Committee on Human Rights and our report has come out only today. These issues are ones about which we thought a great deal in drafting the report. The first point I would like to make is that I am very glad indeed to hear my noble friend the Minister say that the issue of intent is going to be revisited in our deliberations. We see this as crucial. It is central to the way in which law has traditionally operated. Distinguishing the person's intention in what they were doing and saying from how others interpreted what they were doing and saying is a very important issue.
	I want unashamedly to make one point at this stage of our deliberations. I take second place to no one in my concern about the gravity of the issues with which we are confronted. It would be lamentable, to say the very least, if somebody who was guilty of the most heinous crimes against innocent people were to go free because of inadequacies in the drafting of law. However, in the midst of the dangers that confront us and the gravity of the situation, we are about defending our society and what makes it worth living. The rights of the accused are crucially important. We must not, therefore, simply concentrate in our deliberations on what would make for a more effective prosecution. We also have honestly to state that the law must be quite clear in its approach so that the interests and rights of the accused are being properly considered throughout its Administration. What we are discussing here is central to that.
	The Committee has not yet dealt with this point about "would", but it is an interesting one. It is central to the issue of having as much clarity and certainty as is possible to achieve not only to ensure effective prosecution, on the one hand, but to ensure that the rights and freedom of the accused are not being rode over roughly, on the other.

Lord Elton: I hope that the noble and learned Lord, Lord Cameron, will not think of terminating this stage of the proceedings, as his movement a moment ago suggested, before we have heard again from the Minister. She has a number of questions to answer; some of them are not as succinct as those of the noble Lord, Lord Eatwell, but all of them deserve an answer before the debate comes to an end.
	Secondly, along with my noble friend Lord Lucas, I am a bit anxious about the proposal to leave the field when so little is undecided. I hope that the noble Baroness and the rest of the House will be mindful of the fact that a promise as imprecise as the one which has been given can, when honoured, reveal quite unexpected dilemmas. I hope that the noble Baroness and the House will remember that if that happens, a Report stage debate is not adequate for resolving such difficulties. It must be implicit, in an offer as vague as this, that there may be an opportunity to reconvene into Committee on this clause.

Baroness Scotland of Asthal: In response to the suggestion of the noble Lord, Lord Elton, I say that I do not think that there will be any need to reconvene into Committee on Report because I hope that we will be able to go through the Bill very fully now. I am more than happy to explain at this stage the Government's current thinking, to enable noble Lords to feel a greater degree of ease as we pass from this amendment to those that are to come. I will seek to answer directly some of the questions that were raised.
	I can tell the noble and learned Lord, Lord Morris of Aberavon, that the burden of proving the effect of the statement would remain with the prosecution. It would be the normal burden of proof in criminal cases of beyond reasonable doubt. I said that inserting "would" would become less problematic because, if we were to adopt the suggestion of noble Lords opposite in relation to the subjective test, that issue would become more clear.
	The noble Lord, Lord Ahmed, asked a question about the Qur'an. We are not seeking to criminalise legitimate use of religious text. As noble Lords know, the offence of encouragement or glorification can be committed only if the statement is made with the intent of inciting others to commit terrorist acts or, once the Bill has been amended, if the person knows that that is the likely result. Mere glorification is not an offence.
	I thank the noble Lord, Lord Thomas of Gresford, for his encouragement. This is not going to be bad law. I think that even he will be pleased by the indications that I am about to give.
	As my noble friend Lord Eatwell and the noble Lord, Lord Lucas, raised this matter, and if it is convenient to the House, I shall deal with the way in which we propose to look at Clauses 1, 2 and 6. Much of the debate at Second Reading and today has focused on the possibility that Clauses 1, 2 and 6 might criminalise activity which we all regard as acceptable. My noble friend Lord Eatwell, for example, argued at Second Reading that Clause 2 might capture some activities which certain libraries are bound to perform. Other noble Lords argued that these clauses would capture academic work, including those who teach history and touch on Islamic extremism. For those reasons, we have thought very carefully about where we go from here.
	We disagreed that the Bill as currently structured criminalises these activities. We are satisfied that it does not. Where those activities are innocent and unlikely to promote terrorism, it will not cause difficulty. However, in view of the concern which has been expressed here and in another place, the Government have given these matters further consideration. We have tried to find ways of giving comfort in relation to them.
	The question of intent and recklessness in Clause 1 has caused the most anxiety. There is clearly no doubt that intent should be part of the offence. Those who intend to encourage terrorism should find that their activities fall within the parameters of this offence. There is, however, some disagreement over the recklessness element. The question is whether the recklessness test should be objective or subjective. An objective test involves establishing whether the defendant could not reasonably have failed to know what the effect of his statement would be. A subjective test would involve establishing that that defendant in fact knew what the effect of his statement would be.
	We are satisfied that if a person could not reasonably have failed to know what the effect of his statement would be, he should not be able to escape punishment simply by asserting that he did not actually know what the effect would be. We in the Government, however, have listened to the concerns expressed here and in another place, and I can confirm that the Government will accept a subjective recklessness test in Clause 1, which both Her Majesty's loyal Opposition and the Liberal Democrats voted for in another place. When we reach Amendment No. 9, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and the noble and learned Lord, Lord Cameron of Lochbroom, we in the Government will support it. Similar issues arise elsewhere.
	This change will mean that the prosecution will have to show not that the defendant could not reasonably have failed to know what the effect of his statement would be, but that he in fact knew what the effect would be. I am satisfied that this change should provide the comfort sought by noble Lords who have had concerns about this offence. The offence will not be committed unless the defendant either intended to encourage terrorism or knew his statement would encourage terrorism. I do not believe that people should be allowed to encourage terrorism intentionally, or to make statements that encourage terrorism when they know what the effect will be.
	I also signal that the Government will seek to make a further change to Clause 1. At present, there is a defence in Clause 1(7). The defence has three limbs: first, that the statement was published in the course of providing a service electronically; secondly, that the statement did not express the views of the person publishing it; and, thirdly, that it was clear in all the circumstances that the statement did not express the views of the person publishing it.
	The Government now propose to extend this defence to everyone, not just those who provide a service electronically. This amendment will extend the scope of the defence considerably. The defence will be available to those who make a statement available to the public in the course of, for example, a news broadcast, if they could show that they did not endorse the statement and the circumstances surrounding the broadcast made that clear.
	Likewise, academics who passed statements on to their students or who took up arguments that could be construed as encouraging terrorism, but only for the purposes of educating their students, could not be convicted, provided that they could show they did not endorse the statement and it was clear in all the circumstances that they did not. We intend to move an amendment to that effect on Report. Together with the move to subjective recklessness, this change would mean—

Lord Phillips of Sudbury: To add to what the noble and learned Lord, Lord Ackner, said, in the light of the significant concession that the Minister has just announced to the House, is there any substance left in the recklessness part of this at all if there can be subjective restlessness?

Baroness Scotland of Asthal: I will certainly think about the noble Baroness's question, although I do not think that it could. The noble and learned Lord, Lord Lloyd, is absolutely right. We are not removing recklessness. We are saying that the test is subjective and not objective. The House should accept that we have moved a long way, not least because it makes this offence considerably more difficult to prosecute, and we have accepted that. The question is whether it makes it impossible to prosecute. Noble Lords should be aware of the argument that the concession would make it almost impossible for there to be a prosecution, and we had to think very carefully as to whether that was the case. We believe that it would be possible—I emphasise "possible"—to prosecute using the subjective test, but no one should be left in any doubt as to the difficulties of satisfying that test. It would be difficult even as it is currently structured.
	Whether the burden of proof should be placed on the defendant is a difficult issue. Placing the burden on the defendant must be assessed to ensure that it does not breach, for example, Article 6 of the ECHR, which guarantees the right to a fair trial. The Government's view is that it is proper and fair for the defendant to bear the burden of proof in those circumstances. Placing a burden on the defence is fair and reasonable for a number of reasons. First, endorsement is not an element of either offence; therefore, the defences are aimed at the exception to the offence. Secondly, whether or not a person endorsed a statement or was expressing his view is within his particular knowledge. Whether that person examined a publication or intended it to be useful to terrorists is also within his particular knowledge. Finally, the defendant is in the best position to bring forward evidence of how he runs his electronic service and to show that the electronic material on it did not have his endorsement.
	The reason why I said that I would consider the point raised by the noble Lord, Lord Goodhart, was to see whether there was anything further that we could do. Of course we will look at this matter, but I should make it clear that I do not believe, having moved such a considerable way forward, that any further movement is likely and it would be wrong of me to leave that impression in your Lordships' minds. This move is very considerable indeed.

Lord Goodhart: This group of amendments removes the words "direct or indirect" in relation to encouragement. In addition to this amendment, I wish to speak also to Amendment Nos. 26, 28, 31 and 63.
	If Amendment No. 4 were agreed to, the Bill would refer only to encouragement, without splitting encouragement into direct and indirect forms. Why is a reference to indirect encouragement necessary? The Bill defines one type of indirect encouragement of terrorism in Clause 1(4). Whether Clause 1(4) should be retained at all is a subject for debate in a different group of amendments and I will not discuss that now. Clause 1(4) is not an exclusive definition of indirect encouragement, it is what I might call an "includes definition" and not a "means definition". The question for this group of amendments is: What else—if anything—do the Government have in mind as being indirect encouragement of terrorism? The concept of "indirect" encouragement of terrorism is frankly extremely vague. It is most unsatisfactory if people can drift into a criminal offence with statements which do not openly, or by necessary implication, encourage terrorism. That is particularly important when freedom of speech is an issue because people should have clear guidance on what they can and cannot say. Subsection (4) gives some guidance for one category of indirect encouragement—the so-called glorification—but not for indirect encouragement as a whole. Will the Minister therefore explain what indirect encouragement may involve? Why is it necessary to have separate categories of direct and indirect encouragement instead of simply a single category of encouragement?
	I note and accept the views of the Joint Committee on Human Rights that indirect encouragement of terrorism can be a legitimate offence. However, the Joint Committee also made it clear that any such offence must be narrowly defined and at present it plainly is not. Indeed, it is not defined at all. If the Government want to make indirect encouragement an offence, they should come back with a clear, complete and narrow definition of it. I beg to move.

Lord Ahmed: I support the amendment tabled by the noble Lord, Lord Goodhart. I am deeply worried about the definition of a terrorist, or of encouraging terrorism, which has expanded to other parts of the world where there are legitimate struggles of the right of self-determination and legitimate struggles against oppression; where there are abuses of human rights and where there is rape and torture. People like me who come from Kashmir know that there are 700,000 Indian soldiers there. International organisations, such as Amnesty International, Physicians for Human Rights, Asia Watch, and the state department, and even the Foreign Office know well that there have been many reports of fake encounters and abuses of human rights, such as rape and torture.
	We need clarification about how far we can go in terms of freedom of speech and legitimate struggles that we have been supporting. After all, our tradition is that we have supported those people who are oppressed. There is absolutely no suggestion that we want to support any terrorist who wants to kill innocent people, but there are people facing armies of oppression, and we need a very clear definition.

Lord Lester of Herne Hill: I do not want to add to the excellent speeches that we have just heard, with all of which I agree in their entirety. I want to make one or two further points wearing my hat as a member of the Joint Committee on Human Rights, whose report has already been mentioned today, and describe how I see the issue as someone who trades in human rights law in the context of free speech in my professional capacity.
	We are here dealing with speech crimes, are we not? They are speech crimes that criminalise the expression of political ideas that cause grave offence and worse, just as we were dealing with speech crimes when we debated provisions in the religious hate Bill on stirring up religious hatred. It is very important—I have said this to friends within the Muslim Council of Britain, for example—to have a completely consistent approach to free expression, whether it is in the context of speech crime in the Bill or under the incitement to religious hatred Bill or any other Bill. What do they have in common? First, there is a serious impact on the right of free expression. Secondly, as I said, they are in the context of political speech. Thirdly, under the principles of the United States Constitution first amendment or the European Convention on Human Rights, it is clear that two main vices must be avoided in legislation of this kind.
	The first vice is vagueness. Crimes of that kind must be tailored so that the citizen is given fair warning in advance of whether their contact will give rise to a serious criminal offence. The vice of vagueness is accompanied by the vice of over-breadth. A crime must not be defined more broadly than is necessary to meet the legitimate aims of the state. In my view, and that of the Joint Committee on Human Rights, the crime of glorifying terrorism fails to satisfy either of those tests. It is too vague and lacks proportionality.
	The Minister may say in her reply, as was said in the context of religious hate speech, that the Human Rights Act comes to the rescue because it states that all legislation, old and new, must be read and give effect compatibly with the convention rights, including the right to free speech. That is true, but the reason why that is no solution to the concern being expressed across the House is that Article 10 of the European convention is a qualifying right, not an absolute right. It has very broad exceptions and the citizen cannot tell by reading Article 10.1 or Article 10.2 whether given conduct will or will not be protected by the convention. So the vices of vagueness and over-breadth are not solved merely by the incantation of the Human Rights Act. It is therefore vital for the House to make quite sure that when those offences are defined, whether in this Bill or the other one, they are not too vague and not over-broad. We have work to do to accomplish those objectives.

Lord Lloyd of Berwick: I support this amendment. I am afraid that the concession that the Minister has offered on subsection (3) does not satisfy me. I have found it useful to trace the history of Clause 1 as it has developed over the past few months to see what it is the Government are trying to achieve. That is what has caused us so much difficulty today.
	On 20 July, we were told that there would be three new offences: the preparatory offence, the training offence and the indirect incitement offence. In a letter to Mr David Davies and Mr Oaten, the Home Secretary accepted at that time that direct incitement was already covered by the common law and therefore there was no need for a new offence of direct incitement. The only odd feature is that there has been no attempt, so far as we know, to prosecute any of these so-called loudmouths for direct incitement.
	The Home Secretary's letter went on to explain what he meant by indirect incitement. This is perhaps my footnote to the discussion that has been taking place this afternoon. He stated:
	"We now want also to cover indirect incitement to terrorism. We intend that the new offence should capture the expression of sentiments which do not amount to direct incitement to perpetrate acts of violence, but which are uttered",
	—the following are the important words—
	"with the intent that they should encourage others to commit, or attempt to commit, terrorist acts".
	So the difference between direct and indirect incitement depends not on a difference of intent—both require the same intent. The difference seems to lie in the strength of language used by the potential defendant. As the noble Lord, Lord Hurd, said at Second Reading, direct incitement will lie with the "loudmouth" who shouts from the hilltops. If convicted, he will get a life sentence. Indirect incitement seems to apply to the man whose sentiments are expressed more obliquely or in a more guarded manner. He will get not a life sentence but seven years. But I emphasise that the intention is exactly the same. The defendant would be indicted with two charges, direct incitement and what I shall call indirect incitement. The jury would have no difficulty at all in deciding which of these charges to convict on, if either.
	So far, so good. I have no difficulty with indirect incitement in that sense. However, we come back to the question of the mental element of that offence. In his Statement on 20 July and in the Home Office press release on 6 October, Mr Clarke, the Home Secretary, made it clear that the offence of indirect incitement would depend on intention. There is no doubt about what he was trying to achieve. That would fit entirely with the Council of Europe convention and the offence of provocation, because—as the noble Baroness will know, given that she quoted part of the definition of public provocation—it goes on to use the same words, that the offence would have to be "with the intent" to incite the commission of a terrorist offence.
	So far there has been no reference to anything of the kind that we now find in Clause 1. What happened was that on the very day the Home Office was saying that it would depend on intent, the Government published the second draft of the Bill and there was no mention of intent anywhere. It said that the offence is committed if the defendant has "reasonable grounds for believing" that it would encourage. I remember my astonishment in reading those draft clauses. I was going to be interviewed that night so I had to see if I could find out what they meant. Although the Home Secretary had said that intention was the essence of this, nevertheless, when the Bill was published, there was no reference to intention but to something quite different—reasonable grounds for believing.
	When the Bill had its Second Reading in the House of Commons, of course Mr David Davis keyed in on that very point—we cannot have reasonable grounds for believing, we must have intention. That is what has been suggested all along. But then something happened which I do not understand. What should have happened is that intention should then have replaced the words "reasonable grounds for believing" but for some reasoning intention was coupled with recklessness; and that is the whole problem. "Recklessness" simply does not fit into this context at all. You can make a reckless statement in the sense that you are reckless as to whether or not it is true, but to make a reckless statement in the sense that you do not care how it is understood I find extremely difficult to understand. I am sure that a jury would find it equally difficult.
	Recklessness is notoriously extremely difficult to define to a jury. It is even difficult to define it to judges, because Law Lords have differed about this, as the noble Lord, Lord Thomas of Gresford, will remember when he failed to win the Caldwell case. Yet recklessness has been induced here at this stage, apparently for no other reason than to secure more convictions, and, as the noble Lord, Lord Plant, observed during the Second Reading debate, that is a very weak ground for a new offence. It would be a bad ground because it will not secure any more convictions at all.
	The Government seem to have the view that they needed to introduce recklessness because of the difficulty in proving intention. But we prove intention day in and day out in the courts. If there were any difficulty in proving intention, the prisons would be only half full instead of overflowing. We can prove intention; the difficulty is in proving recklessness. That is going to cause much more trouble for apparently no real object and will certainly lead to many more appeals.
	At Second Reading there was very little support, if any, for recklessness as a test. Two very powerful speeches were made against recklessness: by the noble and learned Lord, Lord Morris of Aberavon, who implored the Government to take back recklessness—recklessness, not subsection (3)—and by the noble Lord, Lord Plant, who made, it seemed to me, an unanswerable case against the clause based on recklessness.
	So I hope that the Government will have second thoughts about this fallback position of recklessness, which will not work, and that the Conservative Opposition will also have second thoughts and support this amendment rather than the one in their own name.

Lord Thomas of Gresford: I support my noble friend Goodhart in this amendment. Reference has been made to the case of Caldwell by the noble and learned Lord, Lord Lloyd. That was reversed in the case of R v G in 2003. It is quite instructive to look at the speech of the noble and learned Lord, Lord Steyn, in that case. This is what he said about it:
	"The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in R v Caldwell failed this test. It was severely criticised by academic lawyers of distinction. It did not command respect among practitioners and judges. Jurors found it difficult to understand: it also sometimes offended their sense of justice. Experience suggests that in Caldwell the law took a wrong turn".
	I have to accept, as the noble and learned Lord has pointed out, some responsibility for that, since my argument failed in Caldwell. The noble and learned Lord, Lord Steyn, went on:
	"That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction".
	The noble Lord, Lord Waddington, earlier this afternoon asked whether bringing in a subjective test of recklessness would have this effect.
	The noble and learned Lord, Lord Steyn, continued:
	"Experience before the R v Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained,"—
	and I have to say that he agreed with my argument—
	"if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive . . . One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences".
	That was the decision of the Judicial Committee, having to interpret recklessness in an existing statute—that is, the Criminal Damage Act.
	That is a difficult concept and it is unnecessary when one is dealing with the speech offences, with which this Bill is concerned. We are concerned not with how a person acts but with what he says and what its effect will be on the audience. Either he is trying to encourage them, in which case it is arguable that he should be punished for doing that, or he is not. It has to be a statement. It is not enough for him merely to applaud a speaker or to shout in a crowd to encourage people. He has to be saying something to people. He knows what he is saying. If he is trying to encourage, he should be punished. If he is not trying to encourage and somebody takes it the wrong way in a way that he cannot possibly foresee, he should not be punished. That is the issue with which we are concerned, and I fully support my noble friends in his attempt to exclude entirely from the Bill this very difficult concept of recklessness in the criminal law.

Baroness Scotland of Asthal: Of course I understand the purport of the opposition of the noble and learned Lord, Lord Lloyd, and the way in which it is put by the noble Lords, Lord Goodhart and Lord Thomas.
	To make it clear, we believe that one has to look at the way in which this Bill has been framed. In framing the Bill we have had to try to fulfil two obligations. The first is our obligation to our partner countries in the Council of Europe, to which we have already alluded, and, in order to ratify the Council of Europe Convention on the Prevention of Terrorism, we needed to create an offence of incitement to terrorism, whether that incitement is direct or indirect. Noble Lords know that Clause 1 purports to satisfy that end and create this offence.
	Noble Lords are right to have said that there is already an offence in our law directly to incite a person to commit a specific act of terrorism. We do not seek to interfere with the common law in the way in which the noble and learned Lord, Lord Lloyd, set out in advancing his remarks on this amendment. It is not an offence, as we have already discussed in our debate on the previous amendment, to incite people to engage in terrorist activities generally, or to incite them obliquely by creating the climate in which they may come to believe that terrorist acts are acceptable. That is the gap that we want to close, both to enable us to fulfil our international obligations and because we believe that it is desirable in its own right. I remind the Committee of the powerful speeches made, particularly on Second Reading, not least by noble Lords on Benches opposite, the noble Baronesses, Lady Park of Monmouth and Lady Ramsay of Cartvale, and other noble Lords who have great experience of that. We are living in a different context.
	The second obligation is, of course, to the electorate. The manifesto on which the Labour Party fought, and won, the 2005 general election contained a clear commitment to create a new offence of glorification. The offence in Clause 1 allows the Government to meet their obligations to the electorate.
	Having outlined the intentions behind Clause 1 in broad terms, I should also like to stress what it is not intended to do. The Government have no intention of outlawing legitimate activities that do not encourage or help terrorists. The emphasis on context and the defences provided in Clause 1 are designed to ensure that teachers, lecturers and writers can all go about their business freely. I am satisfied that the Bill does not pose a danger to such people.
	I am, however, conscious—and we have debated this both on Second Reading and today—that many noble Lords have expressed concerns that the activities of such people will be criminalised by this clause. That was raised by the noble and learned Lord, Lord Lloyd of Berwick, and is exciting the attention of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. That is why I made my earlier comments on our proposed amendments. The most important amendment which we are now considering, Amendment No. 6, means that the offence in Clause 1 would be committed only—I emphasise this—if the person making the statement intends to encourage terrorism. There would be no provision relating to recklessness at all if the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, had their part.
	There has been much debate about the objective and subjective elements. They were considered extensively both in the other place and on Second Reading. The provision that the offence should be committed if the person making a statement intends to encourage terrorism clearly needs no further justification. I think we are all agreed—as was clear from the statements of the noble and learned Lord, Lord Lloyd of Berwick—that people who make statements which they intend to encourage terrorism should be committing an offence. We are in total agreement, ad idem.
	I am also absolutely satisfied that a recklessness limb is justified. People who knowingly make statements that will encourage their audience to commit acts of terrorism should be covered by this offence. Indeed, the very idea of a defendant arguing that he knew his statement would encourage terrorism, but that he did not intend that it should do so, shows how difficult the amendment is. It is verging, if I may respectfully say so, on the absurd. Would we really want defendants going scot-free who quite brazenly say that they knew what the effect of their statements would be, but made them anyway?
	Before even considering the changes the Government now propose to make, I would therefore urge noble Lords to withdraw their amendments, bearing in mind the clear change that I have signalled that the Government are minded to make. In order to explain our change, I perhaps need to say a little more.
	The detail of what the recklessness limb should be is, of course, complicated. In order that the Committee should fully understand the implications of Amendment No. 6, I need to explain what the Government propose to do to the recklessness limb which this amendment would remove. Although this anticipates matters that will be debated further at a later stage, it is necessary in order that your Lordships should know what they would be rejecting, if they were to support this amendment, which comes first.
	As the Committee will be aware, much of the debate on recklessness focused on subjectivity and objectivity. If a person could not reasonably have failed to know what the effect of his statement would be, he should not be able to escape punishment by simply asserting that he did not know what the effect would be. However, we understand the difficulties that poses, the arguments extended about Caldwell, and the arguments about where the law now is in relation to R v G. That is why I signalled today, on behalf of the Government, that we are prepared to move to the subjective test of recklessness in Clause 1 of this Bill, which both the Her Majesty's loyal Opposition and the Liberal Democrats voted for in another place. On that basis, we will support Amendment No. 9, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and the noble and learned Lord, Lord Cameron of Lochbroom.
	As I understand it, the noble Lord, Lord Goodhart, is indicating that he would prefer the removal of "recklessness" in its entirety. If "recklessness" should remain—he does not admit that—he would prefer the subjective, as opposed to the objective, test. The effect of this change, if we adopt the position of Amendment No. 9, will be that the prosecution will have to show not that the defendant could not reasonably have failed to know what the effect of his statement would be, but that he did in fact know what the effect would be.
	I think this amendment would provide the comfort that many on this Committee said that they needed in order to assuage their concern over this offence. If that construct is accepted and adopted by us all, there will then be no circumstances under which this offence could be committed if the defendant did not either intend to encourage terrorism or know that his statement would encourage terrorism. Speaking entirely for myself, I can see no reason why people should be allowed to encourage terrorism intentionally, or to make statements that encourage terrorism recklessly, when they know what the effect will be. It would be unfortunate indeed if we were to allow people the opportunity to abuse our citizens in a way which would have such potentially horrific consequences, and if we did nothing to prevent it.
	In view of the change to a subjective recklessness test, which the Government will seek to introduce on Report, I invite the noble Lord to indicate that he is content to withdraw the amendment.
	There are still more reasons why he should do so—

Baroness Scotland of Asthal: First, their intent has either to be to encourage the commission of those acts of terror, or to make statements, knowing it will encourage acts of terror to be committed, but are reckless as to those consequences; they may say, "I will do it anyway". Similarly, someone may say, "I wish to blow up an aeroplane. I do not wish to kill any of the people on the aeroplane, but I intend to put the bomb on the aeroplane and I am reckless as to the consequences". If you intend to do something, the consequences of which are known to you, and those consequences occur, you must be held responsible for what you have done. In the description that the right reverend Prelate the Bishop of Oxford gives, it would be perfectly possible for the person making that speech to make a distinction between the cause and the way in which others pursue it. It would be possible to say that I absolutely abhor all forms and acts of terror and I do not believe it is possible to legitimately pursue these aims using those acts of terror, albeit that I understand the mischief from which you suffer and which you seek to address. It is perfectly possible to make a speech in which one clearly disassociates oneself from the type of acts of terror which are used by individuals to pursue their aims.
	This Bill says, "If people do not wish to endorse those acts of terror, they should make it plain that they do not seek so to do". I do not believe that that is beyond the wit of man to make that distinction. Innumerable people have done that. The behaviour and statements of Gandhi—at a time when terror was being used—made it absolutely clear that he agreed with the independent struggle and with change but he fundamentally disagreed with those who used acts of terror to pursue that cause.

Lord Ahmed: May I also add that during the elections, and even after the elections, many Members from the other place went to the Kashmiri community in the United Kingdom, where they were saying openly that Kashmiris are freedom fighters and not terrorists. The Prime Minister, during his visit to India, said that they are terrorists. Would those Members of Parliament, when they go back to their constituencies with their Kashmiri constituents, be allowed to say that they are freedom fighters, or would they now have to say that they are terrorists?

Lord Kingsland: moved Amendment No. *8:
	Page 1, line 14, at end insert "in the circumstances known to, or foreseen by, him"

Lord Eatwell: I declare an interest as chairman of the British Library. I reflect with some pleasure on what the Minister has said, but also with some degree of confusion. She referred, on several occasions to Clause 2(9), in which the concept of intent is already present in referring to those offences defined by subsection (2)(b), which is,
	"information of assistance in the commission or preparation",
	of terrorist acts. However, it does not contain the concept of intent with respect to subsection (2)(a), which is,
	"a direct or indirect encouragement or other inducement".
	Am I to understand that the concept of intent already embodied in Clause 2(9) is to be strengthened to cover subsection (2)(a)?

The Earl of Onslow: I understand that absolutely, and I have read in the newspapers of anecdotal evidence that certain shops concentrate on how to blow up this, that and a third thing—setting aside that all this information is available on the Internet. But surely there will be a border area. For all I know, such books may be available in the Harrods bookshop or in Waterstone's. As we going to send Mr al Fayed off to nick for promoting terrorism? I see that the noble Baroness grins in anticipation, but that is another story altogether.

Baroness Andrews: My Lords, with the leave of the House, I shall repeat a Statement about local authority revenue finance for England in 2006–07 and 2007–08 made earlier today in another place by my honourable friend the Minister of State for Local Government. The Statement is as follows:
	"Sensible planning for service delivery needs a stable and predictable funding environment. Freezes on grant distribution changes have helped. But the time has come to go further and give councils firm forward financial allocations. There is no reason why councils cannot now provide similar certainty for their local taxpayers when setting their council tax for 2006–07 by providing an indicative council tax for 2007–08.
	"To give councils as complete a picture as possible of forward financial allocations, I am announcing today for the two years 2006–07 and 2007–08 allocations of formula grant and grant for the Supporting People programme. The Government will also publish by local authority a table of allocations of all the major revenue grants that can be allocated in advance, including the Neighbourhood Renewal Fund, which gives indicative allocations of £525 million for 2006–07 and £525 million for 2007–08 for the 86 most deprived local authority areas in England. By the end of this week we expect that the vast majority of individual specific grant allocations will be announced to local authorities. The only grants that cannot be announced at this stage will either be performance-led or data-driven in their nature.
	"My right honourable friend the Minister for Schools will shortly announce the provisional allocations to authorities of Dedicated Schools Grant; noble Lords should bear in mind that these allocations need to be added to those I am announcing today to give a fuller picture of the above-inflation funding going to authorities with education and social services responsibilities.
	"With the next spending review period we will move to give three years of grant allocations to local government. It is also high time we overhauled the system we use to distribute the formula grant. For over 20 years successive governments have used a system based on notional figures for spending and local taxation. In the 1990s, the government described the old Standard Spending Assessments as,
	'intended to represent the amount which it would be appropriate for the receiving authority to calculate as its budget requirement'.
	But we no longer take that view. The formula is simply a means of distributing government grant. Notional spending and taxation figures are nonetheless still being misunderstood and misused for a variety of purposes, such as spending or tax targets, for which they were neither intended nor suitable. Such notional figures get in the way of sensible budget setting, because councils treat them as targets or going rates, and get in the way of a more mature relationship with local government on doing business together. I propose a system that deals in an honest currency—cash grant—not fanciful assumptions about spending.
	"I accept that most responses to consultation were against our consultation proposals along these lines. However, the arguments supporting this position were not strong. Many stated that the new system would be more complex or use more judgment than the existing system; neither is the case. The new system will retain the strengths of the old. It will continue to take account of the relative needs of an area, and the relative ability of councils' areas to raise council tax. There will be an element of grant that is distributed on a 'per head' basis, and there will be a grant floor.
	"Total revenue grants to English local authorities will be £62.1 billion in 2006–07 and £65.1 billion in 2007–08, increases over the previous year of 4.5 per cent and 5 per cent respectively. Part of that increase is dedicated funding for schools, leaving formula grant for other services that will total £24.8 billion in 2006–07 and £25.6 billion in 2007–08, increases of 3 per cent and 8.8 per cent respectively. This means that by 2007–08 the increase in government grants for local services, since taking office, will be 39 per cent in real terms.
	"We have been working with local government over the past three years on possible changes to grant distribution formulae. We consulted publicly over the summer and I am publishing the summary of consultation responses today. Following that consultation, we propose a number of changes. The main drivers behind these are: updating, in particular by using 2001 census data in place of that from 1991; making the system more forward-looking by using projections of population and council tax base; and adapting to policy change.
	"The new formulae for personal social services for children and younger adults are based on extensive research and have a solid evidence base. This makes it clear that there will need to be substantial change to reflect the evidence on service provision and the very different social and demographic environment of the 2001 census. The grant system also takes account of councils' widely varying ability to raise council tax, depending on the council tax valuations of housing in their area. We propose to increase this resource equalisation because doing so will make the system fairer for those authorities with relatively low ability to raise council tax locally. I propose to adjust the grant distribution system to reflect the introduction of free off-peak bus travel for the over-60s and the disabled from next April. I shall do so by increasing in the district level environmental, protective and cultural services formula the weightings given to factors that reflect support for the disabled and the needs of areas where take-up is likely to be highest.
	"Grant floors—minimum guaranteed increases from one year to the next—are a permanent part of the system. Given the importance we attach to stability and predictability of grant, we shall be phasing in the larger changes this year with more than usual care. The changes to children's and younger adults' social services will be phased in with specific formula floors. Additionally, we propose grant floors for groups of authorities as follows. For 2006–07 the floors will be: 2 per cent for authorities with education and social services responsibilities, but this figure excludes the increase in schools funding, which will give all such authorities above-inflation increases in grant; 3.2 per cent for police authorities; 1.5 per cent for fire and rescue authorities, with this figure masking the help we give by phasing in recovery of the modernisation grant paid in 2004–05; and 3 per cent for shire district authorities.
	"For 2007–08, the grant floors will be: 2.7 per cent for authorities with education and social services responsibilities; 3.7 per cent for police authorities; 2.7 per cent for fire and rescue authorities; and 2.7 per cent for shire district authorities. Within each group of authorities, those above the floor will have their grant increase scaled back to pay for the floor. The proposed floor levels will mean a fairly narrow range of grant increases in 2006–07, with police authorities, in particular, all receiving approximately the average increase. For 2007–08 all authorities receive a grant increase at least in line with inflation, and more formula change will come through for most authorities.
	"I would now like to turn to the Supporting People programme, introduced in 2003 and now successfully providing support to over 1.2 million vulnerable people. I am pleased to announce a two-year settlement for this programme. The Supporting People grant allocation for 2006–07 will be £1.685 billion, which is a significant investment. I have also announced guaranteed minimum allocations for 2007–08 to enable authorities to plan their expenditure. Further, I am pleased to announce that authorities will be able to roll forward any savings from 2005–06 to 2006–07 in order to reinvest in the programme. This announcement brings stability to the sector and will enable authorities to work with support providers and voluntary sector and community groups to plan for the future. Building on the success of Supporting People, I recently launched a consultation on how the programme can be further improved and, following this consultation, I will announce next summer full allocations for 2007–08.
	"This settlement is good news for councils and council tax payers. We have been working closely with local authorities this year to identify the extent of the pressures they face up to 2007–08, and consider these actions necessary to mitigate those pressures. I am pleased to announce extra formula grant for the two years over and above previous plans of £305 million and £508 million for local government. We have also agreed with local government that we will jointly move forward on a number of fronts aimed at addressing the real pressures that councils face. This includes a continued commitment to the new burdens procedure, working with local government to assess the costs and savings of implementing new policies and funding the net costs. We will be strengthening the mechanisms to enforce the new burdens procedure. Further, I announced to this House on Friday our agreement that cost pressures arising from reinstatement of the 85-year rule in the local government pension scheme will not fall on taxpayers.
	"We are also aware of authorities' concerns over the costs of the new licensing scheme. I am pleased that we have been able to reassure the Local Government Association on this issue. My honourable friend the Minister for Creative Industries and Tourism has today reaffirmed the Government's undertaking that costs to local authorities from meeting their requirements under the new Licensing Act will be fully met by fees within the national fee regime, provided that they are incurred legitimately and efficiently. Local authorities will also benefit from the extra money coming in to local authority budgets through the Local Authority Business Growth Incentive scheme, and from the new top-up grants for police and fire and rescue pensions. These will help budget planning and, ultimately, the council tax payer.
	"We have provided a stable and predictable funding basis for local services. We expect local government to respond positively so far as council tax is concerned. Therefore, we expect to see average council tax increases of less than 5 per cent in each of the next two years. There is, following today's announcement, no excuse for excessive increases. Local government should be under no illusions: if there are excessive increases, we will take capping action, as we have over the past two years.
	"I am also announcing consultation on alternative notional amounts. The draft alternative notional amounts report sets out the proposed notional adjustments to local authorities' 2005–06 budget requirements, to help enable like-for-like comparisons with 2006–07 budget requirements for capping purposes. This is being issued today for consultation, to ensure that authorities know in advance of setting their budgets the budget requirement figure for 2005–06 that the Government will use when considering using capping powers.
	"The Government have provided another significant boost to local authorities with a financial package that is stable, predictable and adequate to meet the pressures local authorities face over the next two years while keeping council tax increases down to acceptable levels. I have placed copies of tables showing grant allocations and supporting documentation in the Vote Office and the Library of the House; full details are being made available for local authorities on our website. I look forward to receiving consultation responses and commend these proposals to the House".
	My Lords, that concludes the Statement.

Baroness Hamwee: My Lords, I, too, thank the Minister for repeating the Statement. In view of my comments and questions, I say at the outset that I appreciate that the Statement was not of her making. I declare an interest as a member of the London Assembly, which has theoretical, if not very practical, powers to deal with the Mayor of London's budget.
	The Statement reads to me as highly centralising and, yet again, as reducing local discretion. It continues—perhaps even more harshly than in previous years—the capping regime. It also reads to me as very confusing. What now for the Lyons review? Will the Government—as I think they should—apologise to Sir Michael Lyons for the continual postponement of dealing with his review, and to local government for what I regard, quite frankly, as the Government's messing about.
	I was at a public meeting about 10 days ago—there were some 300 people there—and one of the subjects which was being discussed was the precept to be levied for the 2012 Olympics. The complaints were not about the cost of the Olympics but substantially about the costs to be incurred by pensioners. Their point was that council tax is an unfair way of raising money and there were many references to those on low incomes. The conclusion, I suspect, for many of those reading the Statement will be that the council tax is unfair and must be got rid of.
	To seek some answers to particular points which were raised, nobody could object to having a stable and predictable funding environment or to enabling local authorities to provide an indicative council tax on a rolling basis for future years. That needs adequate information. It is a very laudable aim and I wonder whether it will work. Do the Government intend to legislate to require this and would I be over-cynical in saying that I see it as something of a mechanism for transferring blame?
	The paragraphs regarding the various grants, by listing all the components, illustrate the complexity and the centralised nature of local government finance. For instance, to talk of allocations under the neighbourhood renewal fund immediately says it: not a local authority decision but an allocation. It seems that unless gearing is drastically reduced there cannot be certainty for the future in the way that this Statement suggests.
	The reference to doing business with local government in a "mature relationship" is again laudable, but to be followed immediately by the confession that the Government are going ahead with plans when the responses to their consultation were not in support of the Government does not seem to me to be a basis for a mature relationship. Could the Minister explain the psychology behind that? It seems to be a question of, "The kiddies in local government got it wrong, we know what's best". Can the Government give us an assurance that a mature relationship as they understand it includes dialogue?
	The figures for total revenue grants exclude the dedicated—the jargon has changed, it is not ring-fenced but dedicated—funding for schools, but do not deal with the inevitable impact on social care budgets. If you dedicate, or ring-fence, one of the two large budget heads, the other one is bound to be vulnerable.
	The noble Baroness, Lady Hanham, asked about resource equalisation, which again seems to be layering complexity on complexity and compounds the problem by performing a rather intricate dance around the area rather than actually addressing it. In dealing with free off-peak travel, where the grant distribution is to be adjusted, can the Minister give an assurance that an adjustment will not be a reduction in practice?
	With regard to grant floors I hope that the Government can also assure us—perhaps they can tell us what consultations they have had—that the figures given for floors will not be met by either despair or hollow laughter, given that they seem to be very low. In relation to the future indicators of all authorities for 2007–08 receiving a grant increase at least in line with inflation, which inflation indicator will be used? We have many and we are accustomed to inflation in local government being higher than what the general public might regard as the inflation level—often for very understandable reasons.
	As this whole area deals, among others, with police and fire authorities, I add to the pleas that I know are being made—I have made them with another hat on—with the London Metropolitan Police Authority and the London Fire and Emergency Planning Authority, whose needs are in part governed by their national responsibilities, which are not, in our view, wholly recognised by the grant made available from central Government.
	I should not take too much longer but I would be grateful if the Minister could tell us whether, in working "closely with local authorities", to quote the Statement, the Government have come to an agreement with the Local Government Association and that the black hole of £2.2 billion, which the Minister has already mentioned, is an agreed figure? Can she also tell us whether the Government agree with the Local Government Association that local authorities have done pretty well when it comes to applying Gershon efficiencies?
	The Minister referred to the costs of the new licensing scheme. I thought that that was supposed to be revenue neutral—I seem to remember some assurances being given in this House during the passage of the Bill. But my heart sinks a little at the explanation that the fees will be met provided they are incurred legitimately and efficiently. Are central Government going to check on all that?
	An inevitably superficial reading of the Statement as I have had to give it, and an inevitably abbreviated report, cannot amount to real scrutiny of a difficult and complex area. We have an annual formula, not one applied just by the ODPM. It is a ritual with increasingly complex rules. I have said of other issues that it is not the issue itself which is the only thing that concerns me. Here, too, I fear that the public will see this as the bureaucrats playing with jargon, with figures, and not addressing what it really is like to receive a council tax bill, or indeed any tax bill because I appreciate that most local funding comes out of taxation raised through other mechanisms. People may well think that this is what bureaucrats thrive on, but I do not think that anybody in the Chamber this evening would say that the politicians thrive on it. Perhaps only those who purvey headache pills in the vicinity of town halls will thrive on this Statement.

Lord Greaves: My Lords, I think we have plenty of time for Back-Bench questions. If I ask the Minister a very general question about whether she thinks that this is a fair and reasonable settlement, she might be able to use her reply to answer one or two more of the Front Bench questions that were asked.
	I declare an interest as a member of Pendle Borough Council, and I looked with interest at the tables. At the end of the Statement, the Minister referred to another significant boost to local authorities. Having looked at quite a few of the tables, in so far as I understand them, I think that when councils begin to look at them seriously tomorrow, a lot of them will have a cold shock going down the spine when they see their allocation. Many places will find it very difficult.
	On floors and ceilings, let me briefly say what has happened in Pendle. I am not making a special interest case just for Pendle; it also applies to quite a lot of other ordinary shire districts—small authorities—for whom these sums are important, such as Hyndburn, Wyre, the Cumbrian coast authorities, and a number of others.

Lord Lloyd of Berwick: This brings us to what may be the one of the most contentious provisions in the Bill. It may help to start by looking at the history of the clause. The glorification offence hit the headlines when the Prime Minister held his press conference on 5 August shortly before going on holiday, but it had already figured in the Labour Party manifesto. The relevant paragraph contains a brief mention of glorification but it is not informative and does not say what is meant by glorification, nor how it could be enforced as a criminal offence. That may explain why, when drafting the Bill, the draftsmen found it so difficult to express it in terms that any of us can understand. This provision was originally a separate clause—Clause 2—but the Home Secretary abandoned that at an early stage and transferred the glorification provision to what I call a deeming provision in Clause 1(4) because he said that that would be an improvement.
	Almost everyone who spoke at Second Reading about glorification, condemned the clause because it was either incomprehensible to the man in the street or unenforceable or both. Those who spoke to that effect included the noble and learned Lord, Lord Morris of Aberavon, and the noble Lords, Lord Thomas of Gresford, Lord Kingsland, Lord Hurd, , Lord Soley, Lord Stratford, Lord Judd, Lord Griffiths of Burry Port, Lord Ahmed and the noble Baroness, Lady Sharp. Nobody who I am aware of spoke in favour of glorification as an offence or the basis of an offence, certainly as drafted. The noble Lord, Lord Carlile, did not support it and the noble Baroness, Lady Scotland, did not deal with it in her reply. We do not have the advantage of her view but we do have the advantage of her presence.
	Let me describe what I think the clause means. Subsections (1) and (2) make it an offence to publish a statement with the requisite mental element, whatever that may turn out to be, which is likely to be understood by members of the public as an encouragement to commit acts of terrorism. Under Clause 20(3) "public" includes members of the public at home or abroad. So guilt will or may depend upon how a statement is likely to be understood in, for example, Palestine or Pakistan, because they are included under the term "members of the public". I do not know how a jury is supposed to form a view about that.
	Under Clause 1(4), which is the deeming provision, a statement celebrating the achievements of, for example, the African National Congress in South Africa or the rebels in Chechnya, is deemed to be likely to be understood as an encouragement to commit terrorist acts in, say, Palestine, if potential terrorists there could reasonably be expected to infer that they should do likewise. I have put that in as simple language as I can, but the very involved language of Clause 1(4) seems to amount to that. That immediately prompts the question: how on earth can anyone know what a potential terrorist in Palestine, or in England, is likely to infer from what is stated? How can anyone know what a potential terrorist would reasonably infer, when, almost by definition, terrorists are not reasonable people?
	Making an offence depend on something which is almost a contradiction in terms—what would be understood by a terrorist in Palestine—is not a proper basis for an offence committed in England. I cannot imagine that any jury would convict in the circumstances that are put before us. Juries do not like these catch-all offences, as we saw the other day in the case of the couple who failed to inform the police about a member of their family who turned out to have been a suicide bomber. Quite rightly, the jury acquitted them. That should never have been an offence, any more than this should be an offence, as it is currently drafted or, indeed, as it could be drafted. It could be drafted more clearly, but it could not be drafted in a way that would make it a suitable subject for a criminal offence under our law.
	In the unlikely event that a jury convicted someone under Clause 1(4), what would be the chances of that conviction being upheld? They would be minimal. The subsection would fail on two separate grounds, both of which were explained earlier by the noble Lord, Lord Lester of Herne Hill. It would fail the test of legal certainty, because people must know where they stand, which is the principle that was explained clearly by the noble Lord, Lord Kingsland, at Second Reading. The subsection would also fail on the ground that it was an unjustifiable restriction on freedom of speech—a principle that still stands for something in this country. It is clearly a restriction on freedom of speech and it is difficult to believe that any court would hold that Clause 1(4) was a proportionate response to the threat of terrorism that we face, although that threat is serious. So it would be held inevitably that Clause 1(4) is not a necessary provision in a democratic society.
	It would of course be some years before that matter were tested in any court, but in the end the result would be the same as it was in the Belmarsh case. Clause 1(4) would be held to be incompatible with the provisions of the convention, and, in particular, with Article 10.2—and another suspect would have been detained in prison wrongfully in the mean time. I earnestly hope that the Government will look again at the suggested basis of an offence of glorification because it just does not add up. I beg to move.

The Earl of Onslow: I would like to glorify the Spaniards who helped the Duke of Wellington evict the French from the Peninsular in 1808 to 1814. I think I would like to glorify the French Resistance who resisted the Germans in 1940. I think I would like to glorify those brave Afghans who resisted the Russians in the 1970s and 1980s. I think I would like to glorify those from East Timor who resisted the Indonesian troops.
	The history of what people call terrorism and what people call freedom fighters always depends upon which side you are. In all civil wars and resistances, extremely nasty things happen. They always get called "terrorists" by the authorities, and "guerrillas" by the freedom fighters. I quite accept, as one my noble friends said earlier, that when you have a constitutional way out, armed resistance becomes unjustifiable. Where there is no constitutional way out, however, guerrilla warfare, resistance behind the lines, blowing people up, blowing bridges up, ambushing sentries, killing Heydrich in Prague—which the Nazis called a terrorist act—all of those things are eminently praiseworthy.
	Am I going to go to prison, or be prosecuted, because I say that those people were glorious patriots? The noble Lord, Lord Bassam of Brighton, shakes his head, but that is what the Bill says, and it says it loud and clear. This has been pointed out before, and it will be pointed out again. We have surely got all the powers we need to prosecute people for doing naughty things. We do not actually need this Bill; it is a piece of flannel. I accept that I will be accused of making a Second Reading speech on that last point.
	On a complete side issue, it is an enormous pity that the noble Baroness, Lady Scotland of Asthal, does not have either the Attorney-General or the Lord Chancellor to help her. In spite of the fact that she is doing jolly well, she is not doing well enough to persuade us, and a lot of the rest of the Committee, to go along with some of this ill-thought-out waffle and muddle with which the Government are presenting us today.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at two minutes to ten o'clock.
	Monday, 5 December 2005.